The Madhouse Divorce: The Effect of Victorian Property, Lunacy and Divorce Laws and Their Portrayal in Popular Culture

By Bolivar, Robin | University of New Brunswick Law Journal, January 2012 | Go to article overview

The Madhouse Divorce: The Effect of Victorian Property, Lunacy and Divorce Laws and Their Portrayal in Popular Culture


Bolivar, Robin, University of New Brunswick Law Journal


INTRODUCTION

In the nineteenth century the trinity of property, lunacy and divorce laws operated inter-connectedly and conspired with male-defined notions of insanity to provide an alternative for husbands who could not divorce their wives: a "madhouse divorce". Victorian property laws made it attractive for men to marry because everything a woman owned became her husband's property at marriage. (1) Once married, a man who acquired a fortune also acquired a wife, of whom he sometimes wished to be rid. However, the law did not allow divorce except in very specific cases, and marital discord or unhappiness did not qualify. The development of lunacy laws in the late eighteenth century offered a solution for husbands. Before the Madhouse Act (1774), (2) no laws governed the process of committing a wife to a madhouse. However, by the nineteenth century, for the first time in English history, medicine examined the mind and the law regulated the madhouse. While the purpose of the laws was to ensure that committal to a madhouse was appropriate, the effect was to legitimize the "madhouse divorce". Lunacy laws distinguished between the propertied and unpropertied, making it far easier to commit the latter. As a result, the industry of insanity emerged. The madhouse became the asylum, and its keepers were no longer matrons but medical men. Men dominated the operation of the asylum and they also defined lunacy--often as that which was female.

The effect of the laws was to protect the men who committed their wives rather than protecting wives from committal. This irony was not lost on the public. Popular literature abounded with criticism of misuse of the lunacy laws, which grew harsher as the century went on. (3) While Charlotte Bronte's Jane Eyre in 1847 provides the archetypal husband who shuffles his wife out of sight because of her insanity and resumes life as a bachelor, Charles Reade offers a direct attack on the laws and madhouse system in Hard Cash in 1863. Bronte illustrates the motive, Reade the means. Outside of fiction, the press was critical of the laws and the injustice that resulted from them. (4) One of the most publicized cases was Georgina Weldon's escape from the mad doctors who, under instruction from her husband, tried to commit her. (5) Subsequent to the passing of the Married Women's Property Act (1882), Weldon took a number of cases to the courts and to the press, demonstrating the failure of the lunacy laws. (6) Weldon's exposure of the abuse of the lunacy laws influenced both the public and the law. In the wake of public censure, these laws underwent a complete reform in 1890, creating a system that effectively ended the madhouse divorce.

Property, Divorce and Lunacy Laws in Victorian England

Under Victorian property law a man could acquire a fortune as easily as saying "I will," offering a great incentive for men to marry. The legal fiction of coverture merged husband and wife into a single married being, represented by the husband. In the words of William Blackstone,

   By marriage the very being or legal existence of a woman is
   suspended, or at least it is incorporated or consolidated into that
   of the husband, under whose wing, protection and cover she performs
   everything, and she is therefore called in our law feme covert ...
   and her condition during marriage is called coverture. (7)

In part, the law was based on the notion that the husband would protect his wife. Therefore, the law entrusted the husband with the care of his wife, subsuming the wife's legal existence during her marriage. A married woman could neither own property nor bring an action. As a result, a married woman was at the mercy of her husband in almost every legal regard. (8) Thus, the marriage contract was often a better bargain for the husband than his wife.

Once married, there was little possibility for escape. Nineteenth-century English society considered the family to be the bastion of morality, and the nation's moral prowess dictated that its divorce laws be harsh and inflexible. …

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